When the artist has died before the commencement of the Act, it is not their will that determines who succeeds the resale right – but rather NZ intestacy legislation. This is required by Section 2 of Schedule 1 of the Act (transitional provisions).
In other words, the artists resale right will be passed to one or more successors “as if” they died intestate (i.e. left no will).
How to Apply Intestacy Rules
The relevant intestacy rules to be applied are set out in the Administration Act 1969, in particular Part 3 (sections 75-80).
Specifically – answers can be found by applying the table at section 77, in two steps:
- First, look at the left-hand column, and select the most accurate description of who were actually left behind by the deceased (e.g. spouse, children, parents etc).
- Second, based on the correct selection, the second column tells us how the estate (and Resale Right) is to be distributed between that person or people.
Example
- First, looking at the left-hand column of section 77, identify the correct class of people. Choose the one which most accurately describes who actually survived the deceased (e.g. spouse, children, parents etc). This could be one of 8 different combinations, for example: did the deceased leave behind:
- a surviving partner (husband, wife, de facto) but no children (example numbered “1”); versus
- a surviving partner, and children (example numbered “2”); versus
- a surviving partner, no children, but one or both parents (exampled numbered “3”); versus
- no surviving partner, but children and parents (example numbered “4”);
- etc.
- Once we’ve identified which of the 8 combinations applies, see the second column for how the estate is divided.
Let’s assume that the artist was survived by: 1 spouse, and 2 children. Looking at the left-hand column of section 77, this matches the example numbered “2”. Based on this selection, the right-hand column states that the beneficiaries to the estate residue are 1/3 to the spouse, and 2/3 to the two children (in equal shares).
Note: if one of the successors subsequently dies, then their share will pass to their own successors (either under their will, or if they died before the Act then applying the same rules above.
Distributing the Resale Royalty
To claim your share of a resale royalty each successor will need to register with RRA here
When registering, you will need to confirm your identity and your share of the resale royalty as per the intestacy law.
When more than one successor claims a share in the resale royalty, we may need to verify each person’s respective share before making a distribution. This is explained further in paragraph 11 of RRA’s Distribution Policy.
In plain English terms:
Who inherits the artist’s resale right?
- The artist died before the 1stDecember 2024, it is determined by the New Zealand intestacy law.
- The artist died after the 1st December 2024, it can be determined by the artist’s will.
Why is the will not recognised when they died before the 1st of December 2024? Resale Right for Visual Artists Act states that when the artist died before the Act started then the intestacy law applies because the resale right did not exist before then.
How do I work out my share of the resale right?
1. Identify your situation: Look at the descriptions on the left-hand column to match your situation. Refer to section 77,
2. Determine the distribution: The right-hand column for that selection then tells you how the resale right is to be shared.
Here is an example:
If you are the child of an artist who was survived by a partner and two children, Section 77 would indicate the partner gets 1/3 and the children get 2/3 (split equally between them). You would then get 1/3 of the resale right royalties.
Note: In the Administration Act 1969, “issue” refers to a person’s direct decedents including children, grandchildren etc.
What happens to my share of the resale right if I die? Your inherited share of the resale right will pass on to your own successors as per your will, or if there is no will then the intestacy law is applied.
Questions? Please contact us at kiaora@resaleroyalties.co.nz